HKSAR v. HUNG PING WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 241/97
and 488/97
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. There are two applications for leave to appeal against sentence before us today. Both applications involved the same applicant, Mr Hung Ping-wah. We deal with both applications together.

2. In application 241/97 the applicant was convicted on his own plea before District Judge Hawkes of two counts of using a false instrument and one count of possession of forged instruments. The judge sentenced the applicant to 2 years on the 1st count, 12 months on the 2nd count and 9 months on the 3rd count. Sentences on the 1st and 2nd count were made consecutive while the sentence on the 3rd count was made concurrent with a total of 3 years' imprisonment. The judge arrived at this conclusion, after taking 2 years' imprisonment as the starting point for the each of first two counts and 12 months as the starting point on the 3rd count. He took into consideration the maximum sentence of 14 years for an offence such as in the first two counts and 3 years maximum for an offence such as the 3rd count. He came to 3 years as the total sentence having regard to the principle of totality. It is against the sentences that the applicant now makes his application for leave to appeal against sentence.

3. The facts as admitted are these. In September 1993 the Applicant bought from a shop in Causeway Bay clothes including a snowsuit to the value of HK$7,000. He produced a MasterCard credit card and the shop charged the payment to this credit account. After the applicant left the shop, the bank informed the shop assistant that the credit card was false.

4. The following day the applicant came back to the same shop to exchange the snowsuit. He used another MasterCard which was also false to pay for the difference in price between the two. He was arrested by the police when he left the shop.

5. The applicant was so to speak, caught red handed. On a search by the police, four more forged credit cards were found at his home and six more in a car which he had borrowed from another person.

6. When the applicant was brought before the District Court after his arrest in 1993, he pleaded not guilty to these charges. He was given bail pending trial. However, he absconded and was at large until he was re-arrested in connection with another case. He was brought back to the District Court in March 1997. Thus it was more than 3 years after he committed the present offences that he pleaded guilty to them. The judge in sentencing him, took into account his plea of guilty but did not give him full 1/3 discount for his plea. The judge considered the late plea did not justify a full 1/3 discount.

7. The grounds of appeal are the overall starting point of 4 years for all 3 charges was too high and that the judge had failed to consider that the applicant was not a manufacturer or supplier of false credit cards or was involved in any syndicated international false credit card operations. In addition the sum involved was small. The sentence was manifestly excessive.

8. Counsel for the applicant Mr. Donald referred to R. v. CHAN Sui-to and another Criminal Appeal No. 115/96 in which a number of cases in relation to sentencing on credit card frauds had been reviewed.

9. Suffice to say the sentences in the cases reviewed range between 3 to 6 years' imprisonment according to the particular circumstances of the case. At the end of the exercise the Court of Appeal in CHAN Sui-to concluded that it would not be possible to formulate a set of principles of sentencing from the cases reviewed. But the court did set down the various factors for the sentencing court to consider and these are: size of operation, planning, international dimension, syndicated operation and the plea of guilty. The court also set down some criteria for sentencing and this is:

"An accused who plays an active but not necessarily a key role in the medium size operation involving between HK$50,000 and HK$150,000 with no elaborate planning and equipment and without an international dimension should receive the sentence of 5 to 6 years. Sentences may be adjusted upwards or downwards according to circumstances."

10. Mr. Donald referring to Chan's case submitted that the sum involved in the present case is small, only HK$7,000. But it is worth noting that in Chan's case, the Court of Appeal further stated that "the sum of money involved is only one of the factors to be taken into account and it is not even the most significant factor."

11. Another case referred to is A.G. v. CHAN Piu-sang and another [1994] 1HKCLR 211. On review by the Attorney General, the Court of Appeal considered that 4 years for possession of five forged credit cards committed by the defendant whilst on bail should be the appropriate sentence, even though the operation was not on a large dimension.

12. The applicant in this case was 42 and had a son. He was a taxi driver at the time of the offence. It is accepted that there is no international dimension involved and there is no evidence of syndicated operation. The amount involved is only HK$7,000. However, as it is said in CHAN Sui-to, this comparatively small amount is only one of the factors for the judge to consider in his sentence.

13. The aggravating factor in this case is the applicant having successfully used the false credit card to obtain the clothing returned to the same shop using another false credit card to pay for the difference in price in exchange for a snowsuit apparently of better quality. The applicant thought he could perpetrate his frauds with impunity.

14. Having regard to the authorities on sentencing credit card fraud cases, the judge's adoption of 2 years as a starting point for the 1st charge and 2 years for the repeated offence in the 2nd charge and 12 months for 11 forged credit cards even taking into account that this is not syndicated operation with international dimension, cannot be said to be excessive. The overall sentence of 4 years as a starting point is not out of tune with the sentences imposed in other cases. It may be on the high side, but is not manifestly excessive. The judge was entitled in the circumstances of the present case to give the applicant 25% discount instead of the full 1/3 because of his late plea. It is the judge's discretion as to how much reduction for a plea he should give and it is not invariable that 1/3 should be given.

15. For the reasons given above, we refuse the application for leave to appeal against sentence.

16. In case No. 488/97, the applicant pleaded guilty in the District Court to 6 charges of using a false instrument, contrary to section 73 of the Crimes Ordinance, one charge of using a false identity card, contrary to section 7A (1) of the Registration of Persons Ordinance, and two charges of possession of a false instrument, contrary to section 75 (1) of the Crimes Ordinance. He was sentenced on 31st July 1997.

17. The applicant used a false credit card on 16th April 1996 to make a purchase worth some HK$11,000. On 8 March 1997 he used a false credit card twice to make purchases totally HK$8,400. On the same day the applicant went to another shop and used a false credit card and made HK$2,000 worth of purchases. On the following day the applicant went to the same shop and used the same false credit card and made purchases worth HK$2,872. He then went to another shop and using the false credit card, he bought a pair of shoes worth HK$1,843. On 11th March the applicant went into a shop and used two false credit cards to pay for a necklace worth HK$13,500 but the staff in the shop were suspicious. They checked his identity card which he produced, but they were also suspicious of the genuineness of the identity card. They then called the police. The applicant was caught as he tried to flee. On a search of his person and his home police found that he had nine false credit cards in his possession and his identity card was also found to be false.

18. For the six charges of using a false instrument, he was sentenced to 18 months' imprisonment on each of them concurrent, but consecutive to the sentences the applicant was then serving in DCC 242/94. In that case he was sentenced to a total of 3 years' imprisonment on the 9th April 1997.

19. For the charge of using a false identity card, he was sentenced to 6 months' imprisonment consecutive. For the two charges of possession of a false instrument, he was sentenced to 12 months' imprisonment on each of them concurrent with each other but consecutive to any other sentence.

20. The total sentence in the present case is 3 years. However, taking into consideration the 3 year sentence in DCC 242/94 which the applicant has first to serve, the applicant has to serve a total of 6 years before he can be released.

21. The applicant applies for leave to appeal against sentence. The grounds of appeal state that the total of 6 years is manifestly excessive. It is submitted that only part of the present sentences should be made consecutive to the earlier sentence of 3 years, but not the whole.

22. No complaint is made against the individual sentences or the total of 3 years for the charges to which the applicant had pleaded guilty.

23. The judge in sentencing noted that the applicant absconded while he was on bail pending trial of DCC 242/94. That case was set down for trial in March 1994. The applicant was not re-arrested until he was arrested for the present offences. The judge noted that if the applicant had been tried, convicted and sentenced in March 1994, the applicant would have served the sentence of 3 years if that was imposed on him at that time. The judge saw no reason why the sentences in the present case should not be consecutive to the earlier sentence.

24. It is submitted by Mr Donald, counsel for the applicant that if the two cases were sentenced by the same judge, the judge might have ordered part of the sentences to be concurrent. Between the present case and the earlier case, there is a time gap of 3 years. The earlier offences were committed in September 1993 whereas the present offences were committed in April 1996 and March 1997. The applicant absconded before the trial date of the earlier case and could not have been dealt with until he was re-arrested. The present offences were committed by him while he was on bail. Apart from the fact that the earlier offences are similar in nature, there is no real connection between the earlier offences and the present ones. These are separate operations. The applicant was to have been prosecuted in March 1994 for his September 1993 offences and it was of his own making that he was sentenced 3 years later for those offences. A sentence of 3 years for two charges of using a false credit card to make purchases worth HK$7,000 and possession of 11 false credit cards, as we have said in that case, is not inappropriate. We do not think it right in these circumstances that the applicant should benefit from his absconding whilst on bail by not being required to serve the sentences separately.

25. However, even though a 6 years overall sentence should not be complained of, we are of the opinion that 6 years overall would be on the high side. Taking a global view of all the offences and bearing in mind the principle of the totality, we think that an overall sentence of 5 years would be more appropriate. We order part of the sentence of 3 years in this case (Case No. 488/97) to run consecutively to the sentence of 3 years in the earlier case (Case No. 241/97) i.e. 2 years of the 3 years sentence in this case to be consecutive to the 3 years of the sentences in that case (Case No. 241/97).

26. For the two cases, the applicant is to serve a total of 5 years. We grant the application for leave to appeal and allow the application against sentence accordingly.